Considerations for aid recipients

Legal right to state aid

Is there a legal right for businesses to obtain state aid or is the granting of aid completely within the authorities’ discretion?

There is no legal right for businesses to obtain state aid. The granting of aid is, in principle, within the authorities’ discretion. However, this discretion may be restricted when a specific Subsidy Framework Act or aid scheme applies. In that case, the authority has to verify whether the conditions under which aid can be granted are satisfied. On the basis of the GALA, decisions of administrative authorities must furthermore respect certain general legal principles, including the principle of equal treatment.

Main award criteria

What are the main criteria the national authorities will consider before making an award?

Over the past few years, most (non-crisis) aid was granted for environmental protection (including energy saving). This totalled more than €1.1 billion in 2017. Other important amounts were granted to the agricultural sector and for R&D. Other types of aid, including employment aid and rescue and restructuring aid, are not awarded very often. In 2017, the amount of state aid (excluding railways) granted by the Dutch authorities amounted to approximately €2.3 billion (State Aid scoreboard 2018 of the European Commission, published 24 January 2019).

Strategic considerations and best practice

What are the main strategic considerations and best practices for successful applications for aid?

Ministries offer general advice in respect of aid and the authorities and bodies granting aid may be able to provide more specific advice. The main strategic considerations and best practices for successful applications include a thorough analysis of the rules and regulations that allow for aid, including their scope, and a timely application. It is advisable to collect as much relevant information as possible and, to the extent possible, discuss a request for aid beforehand with the granting authority or body. It is also advisable to start preparing a request for aid at an early stage. It is better not to start a project before a decision with respect to the request has been taken.

Challenging refusal to grant aid

How may unsuccessful applicants challenge national authorities’ refusal to grant aid?

When an applicant has been unsuccessful in applying for aid and a government authority refuses to grant aid, it may be possible to challenge the authority’s decision. Such proceedings initially involve a preliminary administrative procedure (usually an objection procedure) under the GALA. This procedure gives the authority the possibility to reconsider its own decision. When the preliminary administrative procedure is unsuccessful, the applicant may subsequently challenge the refusal (to reconsider) before an administrative court.

Involvement in EU investigation and notification process

To what extent is the aid recipient involved in the EU investigation and notification process?

The extent to which the aid recipient is involved in the EU investigation and notification process depends on the circumstances. The notification will be drafted by the authority, but the aid recipient may be invited to provide input. The degree of involvement of the aid recipient depends very much of the circumstances of the individual case. It should be noted that since the last reform of Regulation 2015/1589, the Commission may address questions directly to aid beneficiaries if the member state concerned agrees. This may already have happened in a limited number of cases.